93 Decision Citation: BVA 93-00730
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-19 403 ) DATE
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THE ISSUES
1. Entitlement to an increased evaluation for residuals of
a gunshot wound of the left femur with fracture at the lower
end of the femur and muscle damage (Groups XIII and XIV),
rated as 40 percent disabling.
2. Entitlement to an increased evaluation for residuals of
a gunshot wound of the left knee joint with instability,
deformity, bowing, traumatic arthritis, and status post left
total knee replacement, currently rated as 100 percent
disabling through May 31, 1993; and 30 percent disabling
effective June 1, 1993.
3. Entitlement to an increased (compensable) evaluation for
a gunshot wound scar on the right thigh.
4. Entitlement to a total disability rating for
compensation on the basis of individual unemployability.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Ronald R. Bosch, Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida. The veteran served on active duty
from July 1951 to April 1953. In September 1991, the RO
promulgated a rating decision continuing the evaluations for
the service-connected disabilities and denying entitlement
to a total disability rating for compensation on the basis
of individual unemployability. The notice of disagreement
with the above determination was received in October 1991.
The statement of the case was issued in November 1991. The
substantive appeal was received in November 1991. A hearing
was held before a hearing officer at the RO in January
1992. In January 1992, the hearing officer affirmed the
determinations previously entered. The RO issued a
supplemental statement of the case in February 1992. The
veteran submitted a statement in March 1992.
In July 1992, the RO promulgated a rating decision assigning
a temporary total convalescence evaluation for hospital
treatment for the gunshot wound residuals of the left knee
joint effective from April 16 through May 31, 1992;
assigning a 100 percent schedular evaluation effective from
June 1, 1992, through May 31, 1993; reinstating the
30 percent evaluation effective June 1, 1993; and continuing
the determinations previously entered. A supplemental
statement of the case was issued in August 1992. The
veteran submitted a statement in August 1992. The
representative, The American Legion, submitted written
arguments in October 1992. The case was received and
docketed at the Board in October 1992. The representative
submitted additional written arguments in November 1992.
REMAND
A review of an October 1992 statement in support of claim
from the veteran shows he reported that he was to appear at
the local VA clinic to be measured for a brace for his left
knee. Correspondence to the veteran from the local VA
medical center pertaining to issuance of such a brace is on
file. The complete outpatient treatment reports, including
those referable to issuance of a brace to the veteran for
his left knee, are not on file. The veteran has not been
formally examined by VA in connection with his appeal.
Evidence of record also indicates he has significant
disabilities which are not service connected such as seizure
disorder, coronary artery disease and peptic ulcer.
VA has a duty to assist the veteran in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103(a) (1991). The United States Court
of Veterans Appeals has held that the duty to assist the
veteran in obtaining available facts and evidence to support
his claim includes obtaining medical records to which the
veteran has referred, adequate VA examinations, records in
the possession of VA, and pertinent evidence that applies to
all relevant facts. Sanders v. Derwinski, 1 Vet.App. 88
(1990); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v.
Derwinski, 1 Vet.App. 90 (1990); and Seavey v. Derwinski,
2 Vet.App. 262 (1992). This duty also includes providing
additional examinations by VA specialists, when recommended
or indicated. Hyder v. Derwinski, 1 Vet.App. 221 (1991).
Under the circumstances of this case, we are of the opinion
that additional assistance is required. The case is
REMANDED to the RO for the following:
1. Copies of the complete treatment
reports at the VA Medical Center in
Gainesville, Florida, should be obtained
and associated with the claims file.
2. A social and industrial survey should
be conducted. It should be ascertained
if the veteran is working. Family
members, former coworkers, members of the
community and the veteran should be
interviewed. The individual conducting
the survey should express an opinion with
complete rationale as to the impact of
the service-connected disabilities on the
veteran's ability to secure or follow a
substantially gainful occupation.
3. After this, the veteran should be
scheduled for an examination by a VA
specialist in orthopedics to determine
the severity of his gunshot wound
residuals of the lower extremities and a
general medical examination. The
examinations are to be conducted in
accordance with the diagnostic procedures
outlined in the VA Physician's Guide for
Disability Evaluation Examinations. All
further indicated special studies are to
be conducted. The report of examination
must include a detailed description of
all gunshot wound residuals including any
limitation of motion, weakness,
instability, presence or absence of pain
and normal findings. The examiners
should ascertain whether all the
complaints in the lower extremity are due
to the service connected disability or
nonservice-connected disability. The
examiners should determine what
disablement is due to service-connected
disability and what is due to
nonservice-connected disability and
whether the veteran is unable to obtain
and maintain gainful employment as a
result of service-connected disability.
The claims file, together with the above
requested evidence, must be made
available to and reviewed by the
examiners prior to the examination. The
report of examination should include
complete rationale for all conclusions
reached.
Following completion of these actions, the RO should review
the evidence and determine whether the veteran's claims may
now be granted. If not, he and his representative should be
provided with a supplemental statement of the case which, in
view of Schafrath v. Derwinski, 1 Vet.App. 589 (1991),
should include application of 38 C.F.R. §§ 4.1, 4.2, 4.40,
4.41, 4.42 (1991) and any other relevant provisions of the
VA Schedule for Rating Disabilities, with a discussion of
the history of the injuries of the lower extremity. A
reasonable period of time for a response should be
afforded. Thereafter, the case should be returned to the
Board for further appellate review.
The purpose of this REMAND is to obtain clarifying
evidence. No action is required of the veteran until he is
notified.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(MEMBER TEMPORARILY ABSENT) JAN DONSBACH
JOAQUIN AGUAYO-PERELES
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
(CONTINUED ON NEXT PAGE)
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).